Delhi High Court
Pushpa Devi & Ors. vs State on 28 May, 2015
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : MAY 07, 2015
DECIDED ON : MAY 28, 2015
+ CRL.A. 333-38/2006
PUSHPA DEVI & ORS. ..... Appellants
Through: Mr. Pradeep Kumar Arya with Mr.
Ayub Ahmed Qurashi, Mr. Rana Kunal, Mr.
Siddant Singh Malik and Mr. Narindra
Chaudhary, Advocates.
VERSUS
STATE ..... Respondent
Through: Mr. Navin K. Jha, APP for State.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. The instant appeal has been filed by the appellants, namely,
Pushpa Devi (A-1), Sheela (A-2), Geeta (A-3), Sharda (A-4), Rajesh
(A-5) and Sanjay (A-6) to challenge the legality and correctness of a
judgment dated 27.04.2006 in Sessions Case No.15/05 arising out of FIR
No.133/00 registered at police station Nabi Karim whereby they were held
guilty for committing offences punishable under Sections 363/366 IPC.
By an order of the same date, they were sentenced to undergo RI for one
year with fine `500/- each under Section 363 IPC and RI for two years
with fine `1,000/- each under Section 366 IPC. It is relevant to note that
accused Manoj was also convicted under Section 376 IPC and was
sentenced to undergo RI for seven years with fine `2,000/-. It appears
that Manoj has not challenged the impugned judgment.
2. Allegations against the appellants as reflected in the charge-
sheet were that on 14.05.2000, they all kidnapped 'X'(assumed name)
from the lawful guardianship of her parents with an intention to compel
her to marry Manoj against her will. She was subsequently married with
Manoj against her wishes and was sexually assaulted by him. On
16.05.2000 Asha, 'X's mother, lodged missing person report and
suspected Manoj to have kidnapped her. During investigation, the
prosecutrix and Manoj were apprehended. 'X' was medically examined
and she recorded her statement under Section 164 Cr.P.C. Statements of
witnesses conversant with facts were recorded. After completion of
investigation, a charge-sheet was filed against all the accused persons in
the court. The prosecution examined fourteen witnesses to substantiate its
case. In 313 statements, the accused denied their involvement in the
crime and pleaded false implication. The trial resulted in their conviction
as aforesaid.
3. I have heard the learned counsel for the parties and have
examined the file. It has come on record that 'X' was in constant touch
with Manoj before the incident. In her Court statement, she admitted that
she was in love with Manoj but was not interested to marry him after
running away from the house. She admitted that letters collectively
exhibited Ex.PW1/DB were written by her. It also included one letter
written by her in her blood. She admitted that photo (Ex.PW1/DA) was
handed over to Manoj by her. She further admitted that physical relations
with Manoj were with her consent and she accompanied the accused with
intention to perform marriage with him. Apparently, it is a case of
elopement with consent. Since the proecutrix was below 16 years of age
as her date of birth recorded in MCD records was 15.05.1985
(Ex.PW13/A, Ex.PW13/B, Ex.PW13/C), her consent to have
accompanied the accused Manoj and to have physical relations with him
was considered immaterial. The appellants were acquainted with 'X' and
her family before the incident. The appellants have been implicated as
there was some property dispute with 'X's parents. In her missing person
report , 'X's mother did not suspect involvement of any of the appellants.
'X' in her Court statement did not state as to how and under what
circumstances the appellants played effective role to kidnap her out of
lawful guardianship of her parents and to marry her with Manoj against
her wishes. She never raised any alarm/hue and cry at any stage about her
alleged kidnapping. She has not attributed any specific/definite overt act
to any of the appellants. She has levelled vague, general allegations
against all of them. Since 'X' was already in love with Manoj and had
written number of love letters to him, these appellants had no say in the
episode. There was no necessity for them to kidnap the prosecutrix as
she herself wanted to marry Manoj. She remained with Manoj for about
six days and at no stage she raised any objection about her alleged forcible
kidnapping. In MLC (Ex.PW3/A) no external visible injuries were found
on her body to infer commission of forcible rape. Nothing has come on
record to show if any of these appellants was present at the time of alleged
marriage of Manoj with 'X'. The prosecutrix has given wavering
statements and in the cross-examination admitted that she of her own had
accompanied the accused with the intention to perform marriage. None of
the accused persons was armed with any weapon to create fear in her
mind. She of her own had reached Chowk Multani Dhanda. Before that
she had sufficient time and opportunity to report to her parents. She left
the home without informing her parents to reach Chowk Multani Dhanda
at 1:30 p.m.
4. Sentence order reveals that all these appellants suffered
incarceration for sufficient duration. Nothing has surfaced as to how these
appellants who had their own families were interested to perform 'X's
marriage with Manoj.
5. In the light of the above discussion, in my considered view,
the prosecution has failed to establish its case against any of the
appellants. Conviction and sentence recorded by the trial court are
unsustainable and are set aside. The appeal is accordingly allowed. Trial
Court record (if any) along with a copy of this order be sent back
forthwith. A copy of the order be sent to Jail Superintendent, Tihar Jail
for intimation. Bail bonds and surety bonds stand discharged.
(S.P.GARG)
JUDGE
MAY 28, 2015
sa
